Razi v Allianz Australia Insurance Limited
[2024] NSWPICMP 687
•1 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Razi v Allianz Australia Insurance Limited [2024] NSWPICMP 687 |
CLAIMANT: | Masoud Razi |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 1 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; section 3.24; accident 13 May 2019; claimant underwent anterior cervical decompression and disc replacement at C4/5 nine weeks before accident; treating surgeon supported subject accident as causing prosthetic non-integration and need for proposed revision surgery; treatment dispute based on delay in detecting non-integration and possible causes unrelated to accident; proposed treatment suitable; review of Medical Assessment Certificate (MAC) which found that claimant had not satisfied the Medical Assessor that the accident contributed to non-integration; parties agreed further examination was unnecessary; Medical Review Panel considered treating surgeon and medicolegal opinions regarding nexus with accident; clinical judgment was that accident could disrupt integration; evidence supported it being probable; appropriate treatment; Held – accident caused non-integration and need for surgery; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT and CARE - CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes Medical Assessor McGrath’s certificate dated 12 April 2024 and issues a new certificate determining that, the following treatment and care: · C4/5 discectomy and fusion surgery proposed by treating surgeon Dr Michael Donnellan, RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. 2. The following treatment and care: · C4/5 discectomy and fusion surgery proposed by treating surgeon Dr Michael Donnellan is REASONABLE AND NECESSARY in the circumstances. |
·
REASONS
Background
The claimant was injured in a motor accident on 13 May 2019. There are disputes about the claimant’s treatment.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant is a 39-year-old male.
On 30 January 2017, the claimant injured his cervical spine at work. In March 2019, the workers compensation insurer funded neurosurgeon Dr Michael Donnellan to operate on the claimant to replace his cervical spine disc (arthroplasty) at the C4/5 level with an implant.
Dr Donnellan, and the available medical information, indicates that the cervical disc replacement surgery performed in March 2019 was a success.
Typically, it takes at least six months for an implant to integrate into the surrounding bone structure.
Approximately nine weeks after that cervical disc replacement surgery on 13 May 2019 the claimant was the front-seat passenger in a vehicle which rolled over multiple times at around 80kmph. The claimant reported immediate neck pain after the accident.
Dr Donnellan states in a report 13 March 2021 that the radiological evidence demonstrated that the disc replacement at C4/5 has not bonded with the surrounding endplates and that the arthroplasty had subsided 3mm or more of disc height. It was his medical opinion that the motor vehicle accident following surgery had caused this compromise.
The specialist proposed revision surgery to the cervical spine in the form of a ‘Single-level Anterior Cervical Discectomy and Fusion and removal of instrument.’
The insurer disputes that the accident caused the alleged injuries. The claimant submits the requested revision surgery would not have been needed if the motor accident had not occurred.
There was a dispute between the claimant and the insurer about:
(a) whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the MAI Act, and
(b) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the MAI Act.
The claimant lodged a Personal Injury Commission (Commission) dispute to determine whether a C4/5 discectomy and fusion is causally related to the accident and reasonable and necessary under s 3.24 of the MAI Act.
On 21 April 2024, Medical Assessor David McGrath concluded that the treatment was not causally related to the accident and was not reasonable nor necessary.
The claimant applied to refer the medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
Responding to the application, the President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor McGrath’s assessment certificate (the Review).
The Panel met on 4 September 2024 to discuss how the Panel would proceed.
The Panel decided that the Medical Assessor’s examination was thorough and that re-examining the claimant was not necessary to resolve the dispute.
The Panel discussed the conclusions of the Medical Assessor, the treating surgeons requests for approval for treatment including his reasons and Dr John Sheehy’s opinion recorded in his report dated 7 March 2023.
The Panel discussed whether the subject accident has caused or at least materially contributed to halting the osteo integration of the devices placed shortly before the accident.
The Panel noted the fusion did not initially seem affected by the subject accident, it has caused a gradual change to that site, which the claimant's treating spinal specialist Michael Donnellan and neurosurgeon Dr John Sheehy agree requires re-visionary surgery.
In summary those doctors agree that although the device can fail spontaneously and not affectively knit to the bone, the accident was violent and there were early complaints about neck and right arm pain after accident. Those doctors’ opinion is that it is likely that a significant neck injury occurred in the subject accident, which contributed to the device failing.
The Panel noted the insurer was arguing that the changes to the device were a result of a degenerative condition, or that the device failing was a known risk independent of the accident and that he would have come to need revisionary surgery eventually.
The Panel’s preliminary clinical judgement is that the accident interfered with that integration and that changes had gradually become visible on scans.
The Panel noted the insurer’s submissions. However, the preliminary view was that evidence presented in the claimant’s case was capable of persuading the Panel there was a nexus with the need for the treatment and the accident.
The Panel’s preliminary view is the request for proposed C4/5 discectomy and fusion surgery relates to injuries caused by the subject motor vehicle accident and that the proposed treatment and care: is reasonable and necessary in the circumstances.
While the progress of the device failure is slow, there is some urgency to resolve this dispute due to the possible adverse consequences of delaying the treatment.
The parties were directed on 5 September 2024 to provide submissions regarding re-examination and the Panel’s preliminary view.
Both parties responded promptly. They agreed that a further examination was not necessary.
The claimant did not make further submissions and the insurer repeated its submissions on causation, as they were presented to Medical Assessor McGrath.
Review conduct
General
The MAI Act governs Mr Razi’s claims and entitlements to benefits and compensation. The legislation provides a scheme of statutory benefits (under part 3).
Mr Razi’s statutory benefits includes weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Treatment and care benefits
The mechanism for the claimant’s recovering treatment and care costs caused by the accident is through the statutory benefits claim.[2]
[2] See s 3.42 of the MAI Act as well as ss 4.3 and 4.5.
Section 3.24 of the MAI Act provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(a) the reasonable cost of treatment and care, …
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Assessment under review
Medical Assessor McGrath noted the evidence from the claimant’s treating surgeon and medicolegal specialists. He justified his decision as follows:
(a) implant failure with osteolysis is relatively frequent based upon world experience and literature;
(b) there is no evidence for acute disruption to prosthetic surgery, other than an increasing neck pain. A “loosening of implant” or “compromise to endplates” requires greater detail, given the normal investigations and initial opinions, including the operative surgeon;
(c) the long delay recording pathological imaging changes (nearly two years) makes the accident less likely to be a cause for the failure.
His opinion was the probability argument for revision surgery is insufficient to overturn these points.
Disputes and issues identified by the parties
Claimant’s submissions
After the accident on 13 May 2019, the claimant complained of increased cervical spine pain. He was asking for treatment at that site from his treating practitioners and specialist.
John Hunter Hospital undertook a cervical spine CT scan which showed ‘no demonstrable fracture. There is evidence of previous surgery with spacer noted between C4 and C5. No obvious signs of displacement.’
Dr Peter Giblin’s Certificate of Assessment dated 12 March 2020 summarised the claimant’s cervical spine X-ray dated 16 September 2019 as ‘no abnormalities are assigned to the post-operative C4/5 disc implant’. The cervical spine MRI scan dated 25 October 2019 showed ‘no evidence of cervical spine change in terms of C4/5 disc replacement’.
On 12 March 2021, Dr Donnellan corresponded advising that although;
“the early postoperative imaging looked good…the CT has actually demonstrated that the disc replacement at C4/5 has not in fact bonded with the surrounding end plates. I suspect that the motor vehicle accident he was involved in five weeks after the surgery has compromised these end plates and he has had some subsidence.” (A16)
Dr Poplawski’s report dated 2 May 2022 agreed with Dr Donnellan that the accident is likely to have loosened the implant and disrupted the cervical arthroplasty (A17).
Dr Sheehy’s report dated 7 March 2023 opined that;
“Mr Razi has a failure of his anterior cervical arthroplasty at C4/5 confirmed with increased isotope activity present in January 2021 well after this activity should have ceased. He has had a failure of the device. These devices can fail spontaneously over a period of weeks or months and not affectively knit to the bone. However, he was involved in a motor vehicle accident where he rolled several times and was admitted to hospital complaining of neck and right arm pain soon after his arthroplasty. On the balance of probabilities, it is likely that the significant injury to his neck that occurred in the motor vehicle accident has contributed significantly to the failure of the device” (A18).
Furthermore, Dr Donnellan reported on 3 April 2023 that he has;
“discussed this case with several other surgeons who all agree that the disruption of the bone disc interface in the early postoperative period has resulted in his current predicament. It is extremely unlikely he would have this problem if he was not involved in a motor vehicle accident. What is definitely clear to me, as a surgeon, is that if a decision is not made soon then Masoud's care is going to be severely compromised.” (A19)
The above-mentioned specialists’ opinions and advice is consistent with the nature of this significant accident, all radiological findings and the claimant’s ongoing symptomology.
The Panel must note the recommendations of the claimant’s treating specialist; the opinions of various specialists in the field; the increased activity on the above-mentioned isotope scan; the CT scan demonstrating non-consolidation of the C4/5 arthroplasty; the claimant’s ongoing symptomology; and, noting the treating specialist’s advice that the claimant’s care will be severely compromised if left untreated.
The proposed treatment of single level anterior cervical discectomy and fusion is reasonable and necessary.
The claimant submits that albeit radiological evidence was not conclusive at the time of the accident, the current medical circumstances support the views of multiple specialists within the appropriate field that the accident-related injury initiated the failure of the C4/5 disc replacement, which in time, being progressive in nature, resulted in the failure of a bond with the surrounding end plates.
The balance of medical evidence is capable of persuading the Panel that the accident probably caused the implant to loosen.
Insurer’s submissions
The proposed C4/5 discectomy and fusion surgery is neither reasonable nor necessary consequence of the accident, pursuant to s 3.24(2) of the MAI Act.
The motor vehicle accident occurred approximately eight weeks after the C4/5 arthroplasty.
The insurer refers to the scanning summarised above up to 16 September 2019.
Dr Donnellan did not explain the two-year period in which there were no investigations that identified a disruption to the C4/5 arthroplasty.
The imaging after the accident, outlined above, does not support Dr Donnellan’s hypothesis. It remains unclear as to why the accident is the alleged cause for revision surgery.
Dr Donnellan also failed to acknowledge the following causation issues that emerge from the CT on 13 January 2021.
The CT identified uncovertebral hypertrophy at C4/5. This informed Dr Donnellan’s conclusion that the C4/5 endplates failed to bond to the disc replacement.
The insurer proposes it is possible the claimant suffered from uncovertebral hypertrophy as a degenerative condition. The MRI on 9 July 2018 supports this, which also identified endplate hypertrophy at C4/5 before the accident.
On 25 October 2019, a brachial plexus MRI was conducted in comparison to the MRI on
9 July 2018. The results concluded, “At C4/5: Interval disc replacement…Stenosis of the right C5 foramen due to uncovertebral spurring, similar to before…”.Uncovertebral hypertrophy was diagnosed both before and after the C4/5 arthroplasty. The Panel should infer that the procedure had already failed to correct the disc injury caused by the workplace incident before the subject accident happened.
Medical Assessor Peter Giblin supports the insurer’s view in his certificate dated
12 March 2020. He concluded the claimant sustained a minor injury to the cervical spine.He also accepted the imaging after the subject accident showed no abnormalities in the C4/5 disc device. In relation to the MRI on 25 October 2019.
The bone scan on 15 January 2021 further accepted that C4/5 uptake was, “likely to reflect ongoing post operative bony remodelling” without referring to traumatic pathology.
That is, uptake at C4/5 was a natural occurrence in the claimant’s recovery from the arthroplasty before the accident. From these results, the basis on which Dr Donnellan recommended revision surgery is entirely unclear.
Based on these factors, the insurer submits the clinical trajectory demonstrates the claimant would have required revision surgery even if the accident had not occurred.
The onus rests on the claimant to prove the accident was the cause of the surgery. If that proof cannot be established, then the treatment will remain attributed to the pre-accident workers compensation claim.
In respect of Medical Assessor McGrath’s causation findings, the claimant says that he applied a ‘wrong test’ when considering causation. The claimant emphasises the difference in language between s 3.24 of MAI Act and its functional predecessor, s 83 of Motor Accidents Injuries Act 1999, each of which deal with an insurer’s liability for treatment. Section 83 used the phrase ‘caused by’ whereas s 3.24 uses the phrase ‘resulting from’ when addressing causation of treatment needs.
It is not appropriate to expect a Medical Assessor to parse the minutiae of legislation and look for subtle variations. It would be less appropriate for a Medical Assessor to form independent interpretations about how those legislative variations function.
Whilst the claimant submits that a lower threshold should apply, the possible practical and functional effect of this change to the threshold is wholly unclear. There is no explanation as to how the Medical Assessor failed to meet the purported thresholds.
There is no indication that Medical Assessor McGrath applied a higher threshold test or a lower threshold test. He deployed his independent clinical decision-making discretion to the decision at hand and explained his reasoning clearly.
Medical Assessor McGrath outlined the evidence that was before him when addressing causation and indicated that he considered that evidence. He explained his reasoning clearly.
Medical Assessor McGrath applied this evidence to conclude that causation was not established. He considered relevant factors and used his clinical expertise and discretion.
Documentation
The Review Panel considered the following documentation:
· Medical Assessor McGrath’s certificate dated 12 April 2024;
· Medical Assessor Giblin’s certificate dated 12 March 2020;
· Application for review and attached documents;
· Reply and attached documents;
· Presidential delegate’s reasons issued on 19 June 2024 referring this matter to a Review Panel, and
· all the documents provided to Medical Assessor McGrath before the assessment under review.
The Panel noted there was no reference to the literature or world experience, which Medical Assessor McGrath relied on in his decision.
REVIEW PANEL FINDINGS
Panel deliberations
Typically, osteo integration requires six months to settle and is the normal trajectory after this surgery. The clinical judgment of the Panel’s medical members is that the accident interfered with that integration and that gradually the changes had become visible on scans.
Medical Assessor Dixon, an orthopaedic surgeon summarised the evidence and Panel’s findings based on that evidence.
He noted on 13 May 2019 the claimant was a front seat passenger in a car driven by his brother. It was rainy and foggy conditions and as the vehicle approached the bend his brother lost control of the vehicle which swerved on the wet road, went over an embankment and then rolled several times and ended up upside down. The claimant and his brother were able to self-extricate from the car through the driver's side door.
Emergency services attended and an ambulance took the claimant to John Hunter Hospital.
History of symptoms and treatment following the accident
He had pain and stiffness in his neck. A CT scan of his neck did not show any discernible injury. He returned to the care of his usual doctor in Sydney, Dr Ali and had a bone scan in September 2019 which showed increased uptake at the C4/5 disc space. Dr Ali referred him to his neurosurgeon, Dr Michael Donnellan.
Dr Donnellan on 8 March 2019, some nine weeks before the subject motor vehicle accident, performed anterior cervical decompression and disc replacement for a disc protrusion C4/5 to treat a work injury.
The claimant’s early post- operative period had been uneventful, and it was not until the subject accident where he sustained a significant injury to his neck that he had increase in neck pain and cervical stiffness. This indicated an acute disruption that later manifested as non-integration of the implant.
When Medical Assessor McGrath examined Mr Razi, he had asymmetry of his neck motion and there was some paraesthesia in the fifth finger. Other than that, there was normal neurological examination in the certificate dated 21 April 2024.
Subsequent investigations noted that cervical spine alignment was maintained during flexion and extension as on a functional X-ray of the cervical spine on 16 September 2019. However, that X-ray showed apparent anterior displacement of the prosthesis, i.e. the C4/5 disc spacer and that a CT of the neck on 13 January 2021 showed posterior osteolysis at C4/5 with disc forward AP displacement, consistent with an incomplete fusion.
A further bone scan on 15 January 2021 showed increased C4/5 uptake.
But for the subject motor vehicle accident, it would be assumed that this C4/5 ACDF would osteo integrate and become a solid fusion over the next 6 to 12 months following the surgery.
At the date of the subject accident there was insufficient time to allow the C4/5 spacer inserted on 8 March 2019 to osteo integrate. It has subsequently evolved into a need for the cervical arthroplasty.
The surgeon, Dr Michael Donnellan, suspected that the motor vehicle accident nine weeks after the surgery has compromised the end plates of C4 and C5 and there has been some subsidence.
Another spinal surgeon, Dr Poplawski, noted on 2 May 2023 that the action is likely to have caused disruption of the anterior cervical arthroplasty with loosening of the implant, which has aggravated the symptoms in his neck.
Dr John Sheehy, consultant neurosurgeon, noted on 7 March 2023 that the anterior cervical arthroplasty at C4/5 had failed, which was confirmed with increased isotope activity present in January 2021, well after this activity should have ceased.
Correctly, Dr Sheehy opined that these devices could fail spontaneously over a period of weeks or months and not effectively knit to the bone (osteo integration). However, Dr Sheehy noted the claimant was involved in the subject motor vehicle accident in which the vehicle rolled several times, and he was admitted to hospital on the day of the accident complaining of neck pain and right arm brachialgia, soon after the arthroplasty. Dr Sheehy stated it was likely that the significant injury to the neck that occurred in the motor vehicle accident, has contributed significantly to the failure of the device.
The CT scan of the neck on 13 January 2021 confirms that view because there is posterior osteolysis at C4/5 with disc forward AP displacement of the spacer, consistent with incomplete fusion.
Overall, the opinion of three experienced consultant neurosurgeons are that but for the subject accident, this loosening would not have occurred.
Discussion
The Panel considered the principles of causation set out in the Motor Accident Guidelines 9.2 (the Guidelines), in particular at cl 6.7, in particular that the subject accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. These clauses are addressed to causation of permanent impairment, but the principles are applicable to treatment disputes too.
The authorities on causation summarised in Appendix A of this decision refer to how medical review panels must decide initially whether it is medically possible for the condition to occur, and if it is, then the panel must weigh the evidence to see if it satisfies the balance of probabilities.
The Panel were of the opinion that after such a significant accident that it was medically possible the accident could have caused prosthetic loosening.
In respect of considering whether the evidence supported the subject accident causing the loosening, it considered the principles referred to in Kirby P’s dicta in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
These principles equally apply to the causal relationship of treatment under the MAI Act by reason of the same statutory language. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was also discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson. [3] The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident.”
[3] [2019] NSWCA 324.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[4]
[4] [2018] NSWSC 1710 (Phillips) at [29].
The Panel noted the insurer’s position and the claimant’s on the interpretation of the MAI Act.
The insurer’s position that the accident did not cause a significant cervical injury is based on the fact that scans immediately after and in the months following the accident did not demonstrate a frank injury.
The Panel noted that the accident happened early in the six months needed following a disc replacement when one would expect that osteo integration was still to settle. It was only over time that it was discernible in later radiology that an anterior displacement of the disc occurred. It took time to see an increase in inflammation with vertebral bone changes and that the implant failed to bond with surrounding structures.
The Panel concluded unanimously that the request for proposed C4/5 discectomy and fusion surgery relates to injuries caused by the subject motor vehicle accident and that the proposed C4/5 discectomy and fusion surgery is reasonable and necessary in the circumstances.
The reason for this is that the prosthetic spacer loosened because it did not have a chance to osteo integrate after the claimant’s neck strain injury in the major motor vehicle accident and it became displaced. Revision of C4/5 ACDF is indicated to relieve the problems of neck pain and stiffness and right brachialgia.
Despite the possibility that a degenerative condition or spontaneous implant failure can occur, the Panel with the claimant's treating surgeon and medicolegal specialists views the accident as being the intervening act which interrupted the expected trajectory after the fusion and prevented osteo integration occurring.
Treatment – causation
The Review Panel’s findings differ from Medical Assessor McGrath’s certificate in relation to whether the 2019 accident caused an injury to the neck at C4/5, being the non-bonding of the fusion undertaken nine weeks before the accident, which requires the proposed treatment.
Based on this Panel’s findings on the nature of the injury to the discs at C4/5, we accept that the motor accident has materially contributed to the need for surgery.
The Panel is satisfied based on its clinical expertise and the preponderance of supportive medical evidence that the significant motor accident aggravated the disc pathology such that the motor accident remains relevantly causative of the need for surgery.
Treatment and care – reasonable and necessary
Medical Assessor McGrath found the treatment was not reasonable and necessary because he found the need for surgery was not caused by the accident.
The Panel notes the submissions against the surgery do not address whether the proposed revisionary surgery was inappropriate or suggested alternative conservative measures. The insurer’s position is the workers compensation insurer should meet the cost of this surgery.
Using the Panel’s entire gamut of its medical expertise it is apparent the proposed surgery is appropriate to treat this condition and it is reasonable and necessary.
The Review Panel’s findings differ from Medical Assessor McGrath’s related treatment in relation to whether the treatment provided, or to be provided is reasonable and necessary.
The Review Panel will issue a new certificate in respect of whether the proposed treatment is reasonable and necessary.
CONCLUSION
For these reasons, the Medical Assessment Certificate is revoked, and the Panel will issue a new treatment and care certificate.
Review Panel certification
Member O’Riain, Medical Assessor Dixon and Medical Assessor Couch have viewed these certificates and confirmed that they agree with the outcome.
APPENDIX A
Statutory provisions and authorities
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Although these do not relate directly to assessing causation in treatment disputes, they carry weight as indicating relevant considerations. Further, ss 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
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